[ORAL ARGUMENT NOT SCHEDULED] Nos. 07-5178, 07-5185, 07-5186, 07-5187 ________________________________________________________________ ________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _______________________________ ARKAN MOHAMMED ALI, et al., Plaintiffs-Appellants, v. DONALD H. RUMSFELD, et al., Defendants-Appellees. _______________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________ JOINT BRIEF FOR DEFENDANTS-APPELLEES _______________________________ MARK E. NAGLE TROUTMAN SANDERS LLP 401 9 Street, N.W., Suite 1000 th Washington, D.C. 20004 (202) 274-2972 Counsel for Defendant-Appellee Colonel Thomas Pappas STEPHEN L. BRAGA ROPES & GRAY One Metro Center 700 12th Street, NW, Suite 900 Washington, DC 20005-3948 RYAN E. BULL BAKER BOTTS LLP 1299 Pennsylvania Ave., NW Washington, D.C. 20004 (202) 639-7700 Counsel for Defendant-Appellee Lt. Gen. Ricardo Sanchez (Ret.) TONY WEST Assistant Attorney General ROBERT M. LOEB BARBARA L. HERWIG Attorneys, Appellate Staff Civil Division, U.S. Department of Justice 950 Pennsylvania Ave., N.W. Room 7268 Washington D.C. 20530 (202) 514-4332 Counsel for Defendants-Appellees Donald Rumsfeld and the United States MICHAEL L. MARTINEZ CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2595 (202) 624-2945 Counsel for Defendant-Appellee Colonel Janis Karpinski ________________________________________________________________ ________________________________________________________________ Case: 07-5178 Document: 1271920 Filed: 10/15/2010 Page: 1
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Case: 07-5178 Document: 1271920 Filed: 10/15/2010 Page: 1 ... · CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici Appellants-plaintiffs are Arkan Mohammed
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ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA_______________________________
JOINT BRIEF FOR DEFENDANTS-APPELLEES_______________________________
MARK E. NAGLETROUTMAN SANDERS LLP401 9 Street, N.W., Suite 1000th
Washington, D.C. 20004(202) 274-2972Counsel for Defendant-AppelleeColonel Thomas Pappas
STEPHEN L. BRAGAROPES & GRAY
One Metro Center 700 12th Street, NW, Suite 900 Washington, DC 20005-3948
RYAN E. BULL BAKER BOTTS LLP1299 Pennsylvania Ave., NWWashington, D.C. 20004(202) 639-7700Counsel for Defendant-Appellee Lt. Gen. Ricardo Sanchez (Ret.)
TONY WEST Assistant Attorney General
ROBERT M. LOEBBARBARA L. HERWIGAttorneys, Appellate StaffCivil Division, U.S. Department of Justice950 Pennsylvania Ave., N.W.Room 7268Washington D.C. 20530(202) 514-4332Counsel for Defendants-Appellees DonaldRumsfeld and the United States
MICHAEL L. MARTINEZCROWELL & MORING LLP1001 Pennsylvania Avenue, N.W.Washington, D.C. 20004-2595 (202) 624-2945Counsel for Defendant-Appellee Colonel Janis Karpinski
I. THE DISTRICT COURT CORRECTLY DISMISSEDTHE BIVENS CLAIMS ON THE GROUND THAT ITWOULD BE IMPROPER TO CREATE A COMMON-LAW DAMAGE ACTION IN THIS CONTEXT. ........................... 13
A. Courts Should Not, Without Congressional Authorization,Recognize A Common-Law Bivens Action To Permit Aliens Detained By The Military In A Foreign War ZoneDuring An Armed Conflict To Sue Military Officials ForMoney Damages. ..................................................................... 14
1. A Court Must Pay Heed To Special FactorsCounseling Hesitation.................................................... 14
2. Claims Arising Out of Military Detention In A Foreign War Zone During An Armed Conflict Raise Special Factors Precluding the Recognition of a Common-Law Bivens Action in this Case.............. 18
3. Rasul II’s Special Factor Holding Is Controlling Here. .............................................................................. 25
II. THE DISTRICT COURT ALSO PROPERLY HELDTHAT PLAINTIFFS’ BIVENS CLAIMS ARE BARREDBY QUALIFIED IMMUNITY. ......................................................... 29
A. The Qualified Immunity Doctrine............................................ 30
B. Rasul Mandates Dismissal of The Bivens Claims HereBased on Qualified Immunity. ................................................. 32
C. Controlling Circuit Precedent Forecloses Plaintiffs’ Argument That Aliens Detained By the Military In Iraq And Afghanistan During An Armed Conflict Have Due Process and Eighth Amendment Rights Under the Constitution.............................................................................. 37
III. THE DISTRICT COURT’S DISMISSAL OF PLAINTIFFS’INTERNATIONAL LAW CLAIMS IS CONTROLLED BY RASUL AND SHOULD BE AFFIRMED. ........................................ 39
IV. THE DISTRICT COURT PROPERLY DISMISSEDPLAINTIFFS’ DECLARATORY JUDGMENT CLAIM. ................ 50
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). ......................................... 29
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,403 U.S. 388 (1971). ........................................................................... 5, 14-15
Boumediene v. Bush, 128 S. Ct. 2229 (2008). ...... 10, 11, 20, 26, 29, 33-36, 38, 39
Bush v. Lucas, 462 U.S. 367 (1983). .............................................................. 22, 27
Carlson v. Green, 446 U.S. 14 (1980). ........................................................... 15, 16
Center for Nat'l Sec. Studies v. Dep't of Justice, 331 F.3d 918 (D.C. Cir. 2003). ........................................................................................... 20
Chappell v. Wallace, 462 U.S. 296 (1983). .......................................................... 23
City of Los Angeles v. Lyons, 461 U.S. 95 (1983). ............................................... 50
Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992).................................... 44
Correctional Services Corp. v. Malesko, 534 U.S. at 67-70. ................................ 16
Western Radio Services Co. v. U.S. Forest Service, 578 F.3d 1116 (9th Cir. 2009). ................................................................................. 15, 16, 17
* Wilkie v. Robbins, 551 U.S. 537 (2007)....................................... 15, 17, 18, 27, 38
Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008), cert. denied, 129 S. Ct. 2825 (2009). .................................................................... 13, 15, 21
Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694. ...................................................................................... 3
Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006). .......................................................................................................... 29
Rules:
Fed. R. App. P. 4(a)(1)(B). ..................................................................................... 1
Plaintiffs originally filed separate civil actions in four different jurisdictions.
By an order of the Judicial Panel on Multidistrict Litigation dated June 17, 2005,
the four cases were transferred to this District of Columbia for coordinated and
consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. On April 4, 2006,
the district court issued a case management order, which, inter alia, granted
plaintiffs’ motion to consolidate all future filings, and designated the four cases
collectively as In re: Iraq and Afghanistan Detainees Litigation. On January 5,
2006, the plaintiffs filed a joint amended complaint. Defendants moved to dismiss
the amended complaint, and on March 27, 2007, the district court granted the
defendants’ motions (App. 111-143). On May 24, 2007, plaintiffs filed timely
notices of appeal (App. 8, 12, 16, 20).
PROVISIONS AT ISSUE
As relevant here, the Federal Employees Liability Reform and Tort
Compensation Act of 1988, Pub. L. No. 100-694, better known as the “Westfall
Act,” provides absolute immunity from tort claims for federal employees acting
within the scope of their employment, as follows:
The remedy against the United States [under the FederalTort Claims Act] for injury or loss of property, or personal injury or death arising or resulting from thenegligent or wrongful act or omission of any employee
of the Government while acting within the scope of hisoffice or employment is exclusive of any other civilaction or proceeding for money damages by reason of thesame subject matter against the employee whose act oromission gave rise to the claim or against the estate ofsuch employee.
28 U.S.C. § 2679(b)(1).
STATEMENT OF FACTS
A. This appeal involves claims for money damages and declaratory relief
brought by plaintiffs, nine nonresident-aliens who allege that they were detained1
in Iraq and Afghanistan by the U.S. military in the course of ongoing hostilities in
those countries. Plaintiffs originally filed separate civil actions in four different
jurisdictions: the District of Connecticut, the Northern District of Illinois, the
District of South Carolina, and the Southern District of Texas. By an order of the
Judicial Panel on Multidistrict Litigation dated June 17, 2005, the four cases were
transferred to this district for coordinated and consolidated pretrial proceedings
pursuant to 28 U.S.C. § 1407.
Plaintiffs Arkan Mohammed Ali, Thahe Mohammed Sabar, Sherzad Kamal1
Khalid, and Najeeb Abbas Ahmed are Iraqi citizens who claim they were detained in2003 at Abu Ghraib prison or other military facilities in Iraq. Plaintiffs MehboobAhmad, Said Nabi Siddiqi, Mohammed Karim Shirullah, and Haji Abdul Rahman areAfghani citizens who claim that they were detained in 2003 at military facilities inAfghanistan. See In re Iraq and Afghanistan Detainees Litig., 479 F. Supp. 2d 85,88 (D.D.C. 2007).
‘special factors’ counsel against doing so.” Rasul II, 563 F.3d at 532 n.5 (citations
omitted). Citing Sanchez-Espinoza, 770 F.2d at 209, the Rasul II Court held that
the “danger of obstructing U.S. national security policy is one such factor.” Ibid.
The Court held the rationale of Sanchez-Espinoza was equally applicable in Rasul:
“the special needs of foreign affairs must stay our hand in the creation of damage
remedies against military and foreign policy officials for allegedly
unconstitutional treatment of foreign subjects causing injury abroad.” Ibid.
(quoting Sanchez-Espinoza, 770 F.2d at 209). The Court concluded that the
“Bivens claims are therefore foreclosed * * *.” Ibid.
That ruling is directly applicable here and bars plaintiffs’ claims. As we
explain below, Rasul II is correct and well founded, and plaintiffs’ challenges to
this Court’s controlling precedent are unavailing.
A. Courts Should Not, Without Congressional Authorization,Recognize A Common-Law Bivens Action To Permit AliensDetained By The Military In A Foreign War Zone During AnArmed Conflict To Sue Military Officials For Money Damages
1. A Court Must Pay Heed To Special FactorsCounseling Hesitation
In Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Supreme Court “recognized for the first time
an implied private action for damages against federal officers alleged to have
Bivens remedy, even in the absence of an “alternative, existing process.” Wilkie,
551 U.S. at 550. The Supreme Court explained that, in deciding whether to permit
a Bivens action, courts still must make an assessment “appropriate for a
common-law tribunal” and should “pay[] particular heed * * * to any special
factors counseling hesitation.” Ibid. See also United States v. Stanley, 483 U.S.
669, 683 (1987) (“it is irrelevant to a special factors analysis whether the laws
currently on the books afford * * * an adequate federal remedy”). Where, as here,
there are special considerations or sensitivities raised by a particular context,
“Congress is in a far better position than a court to evaluate the impact of a new
species of litigation against those who act on the public’s behalf,” and “can tailor
any remedy to the problem perceived, thus lessening the risk of raising a tide of
suits threatening legitimate initiative on the part of the Government’s employees.”
Wilkie, 551 U.S. at 562.
2. Claims Arising Out of Military Detention In AForeign War Zone During An Armed Conflict RaiseSpecial Factors Precluding the Recognition of aCommon-Law Bivens Action in this Case
The question presented here is whether a court should, without
congressional authorization, recognize a common-law Bivens action to permit
aliens detained by the military in a foreign war zone during an armed conflict to
sue military officials for money damages for alleged mistreatment during their
Navy v. Egan, 484 U.S. 518, 530 (1988), is that “unless Congress has specifically
provided otherwise, courts traditionally have been reluctant to intrude upon the
authority of the Executive in military and national security affairs.” 3
Given this well-established general rule, and given the strong presumption,
discussed above (pp. 15-18), against extending Bivens actions to new and sensitive
contexts, it is hardly surprising that courts have deemed it inappropriate to fashion
a common-law Bivens money-damages remedy in contexts directly implicating
armed conflict and/or national security. See Stanley, 483 U.S. at 678-85 (“the
Constitution confers authority over the Army, Navy, and militia upon the political
branches. All this counsels hesitation in our creation of damages remedies in this
field”); Arar, 585 F.3d at 574-75 (“[i]t is a substantial understatement to say that
one must hesitate before extending Bivens into such a context”); Wilson v. Libby,
535 F.3d at 710 (“if we were to create a Bivens remedy, the litigation of the
allegations in the amended complaint would inevitably require judicial intrusion
into matters of national security and sensitive intelligence information”); Beattie v.
Boeing Co., 43 F.3d 559, 563-66 (10th Cir. 1994) (“The unreviewability of the
Refusal to adjudicate a claim directly implicating matters of war and national3
security, however, “does not leave the executive power unbounded.” Schneider, 412F.3d at 200. While the aggrieved party may have no remedy for damages, “the nationhas recompense, and the checks and balances of the Constitution have not failed* * *. If the executive in fact has exceeded his appropriate role in the constitutionalscheme, Congress enjoys a broad range of authorities with which to exercise restraintand balance.” Ibid.
II. THE DISTRICT COURT ALSO PROPERLY HELD THATPLAINTIFFS’ BIVENS CLAIMS ARE BARRED BYQUALIFIED IMMUNITY
The district court also held, in the alternative, that plaintiffs’ Bivens claims
are barred by qualified immunity. Like the special factor ruling, this issue is4
directly controlled by Rasul II, which held that the federal officials facing similar
claims asserted by Guantanamo detainees are “entitled to qualified immunity
against plaintiffs’ Bivens claims.” Rasul II, 563 F.3d at 532. Again, plaintiffs are
Defendants note that there are additional grounds supporting dismissal that4
were not reached by the district court. For example, the district court decision herewas issued prior to both Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) and Bell AtlanticCorp. v. Twombly, 550 U.S. 544 (2007). Because the district court did not reach theissue of whether the complaint adequately pleads a claim of supervisory liabilityunder Iqbal and Twombly, we do not address that argument on appeal. Defendants’brief on appeal, however, should not be construed as conceding that argument, whichwould be an issue to be addressed if the case were to return to the district court.
If the claims were to return to the district court, defendants would also have theopportunity to demonstrate that the claims are also barred under § 7(a) of the MilitaryCommissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) (MCA), whichamends 28 U.S.C. § 2241(e). The amendment bars federal court review of any claimthat relates “to any aspect of the detention, transfer, treatment, trial, or conditions ofconfinement of an alien who is or was detained by the United States and has beendetermined by the United States to have been properly detained as an enemycombatant or is awaiting such determination.” 28 U.S.C. § 2241(e)(2). As this Courthas recognized, Boumediene had no effect on § 2241(e)(2). See Kiyemba v. Obama,561 F.3d 509, 512 n.1 (D.C. Cir. 2009). Thus, if this case were to return to thedistrict court, defendants would then have an opportunity to demonstrate that thisprovision applies by submitting documentation demonstrating that each plaintiff was,at the relevant time, “determined by the United States to have been properly detainedas an enemy combatant.” 28 U.S.C. § 2241(e)(2). As in Rasul II, however, there isno need for such further proceedings in this case because, even without regard toMCA § 7(a), the claims are properly dismissed.
it was not clearly established at the time of the alleged misconduct that
nonresident aliens outside sovereign United States territory possessed the
constitutional rights claimed by the plaintiffs. Rasul I, 512 F.3d at 665-67; Rasul5
II, 563 F.3d at 530-32. Rejecting plaintiffs’ contention that a reasonable person
would have been on notice because the “prohibition on torture is universally
accepted,” the Court emphasized that “[t]he issue we must decide * * * is whether
the rights the plaintiffs press under the Fifth and Eighth Amendments were clearly
established at the time.” 512 F.3d at 666 (emphasis in original). This Court
recognized that no legal authority could “support a conclusion that military
officials would have been aware, in light of the state of the law at the time [2003],
that detainees [in Cuba] should be afforded the [constitutional] rights they now
claim.” Ibid (quotation marks omitted).
The district court in this case reached the same conclusion: “Even assuming
that the plaintiffs could establish that they are entitled to assert rights under the
Fifth and Eighth Amendments, the Court finds that those rights were not clearly
established at the time the alleged injurious conduct occurred.” Iraq Detainee
Litig., 479 F. Supp. 2d at 108. Like this Court in Rasul, the district court stressed
The Rasul II ruling adopted this aspect of the Rasul I opinion. See Rasul II,5
560 F.3d 530 (“Our vacated opinion explained why qualified immunity insulates thedefendants from plaintiffs’ Bivens claims. Rasul I, 512 F.3d at 665–67. Boumedienedoes not affect what we wrote.”)
Thus, there can be no question that defendants are entitled to qualified
immunity for the constitutional Bivens claims in this case. If a reasonable military
officer could have thought in 2003 that those detained at Guantanamo Bay were
not entitled to assert constitutional rights, as this Court held in Rasul, then it
necessarily follows that a reasonable military officer in 2003 could have believed
that aliens detained in the course of military operations in Iraq or Afghanistan
were not entitled to such protections.
For these reasons, the district court’s qualified immunity holding is plainly
correct and controlled by Rasul, and should be affirmed.
C. Controlling Circuit Precedent Forecloses Plaintiffs’Argument That Aliens Detained By the Military InIraq And Afghanistan During An Armed ConflictHave Due Process and Eighth Amendment RightsUnder the Constitution
The dismissal of the Bivens claims here can and should be affirmed on the
ground that the special factors counsel against the recognition of such an action,
or, in the alternative, on the ground that the constitutional rights asserted were not
clearly established at the time. Doing so allows this Court to decide the case
without reaching the question of whether plaintiffs here can invoke constitutional
rights. That was the approach adopted by this Court in Rasul II, and the same
approach should be followed here, as well. Resolving the Bivens claims in this
manner, without reaching the underlying constitutional issues, is consistent with
As discussed above, if, as this Court has held post Boumediene, the military
detainees at Guantanamo (which was deemed by the Supreme Court to be de facto
sovereign territory, and is far from the war zone) have no constitutional rights,
beyond the Suspension Clause right to petition for habeas review, then plainly
plaintiffs here (held in a locale where the detainees do not, under the law of this
Circuit (al Maqaleh, supra), even possess the Suspension Clause right to pursue a
habeas claims) have no colorable claim to Fifth or Eighth Amendment rights under
the U.S. Constitution.
III. THE DISTRICT COURT’S DISMISSAL OF PLAINTIFFS’INTERNATIONAL LAW CLAIMS IS CONTROLLED BYRASUL AND SHOULD BE AFFIRMED.
As to plaintiffs’ international law claims, asserted under the Alien Tort
Statute, the district court properly held that the claims were barred by the Westfall
Act, 28 U.S.C. § 2679. The court held that Westfall Act immunity plainly applies6
here because “[a]s military officials commanding Armed Forces serving our
country during a war, there can be no credible dispute that detaining and
interrogating enemy aliens would be incidental to their overall military
obligations.” Iraq Detainee Litig., 479 F. Supp. 2d at 114. This holding is correct
In the district court, plaintiffs also asserted claims under the Fourth Geneva6
Convention and argued that those claims were exempt from the Westfall Act. Onappeal, plaintiffs have expressly waived such claims. Ali Br. 45 n.20 (“Plaintiffs donot appeal that ruling and do not raise any claims under the Fourth GenevaConvention on appeal, either directly or under the ATS”).
would preclude judgment against the United States. United States v. Smith, 499
U.S. 160, 166 (1991); see 28 U.S.C. § 2679(d)(4).
Applying District of Columbia law, and based on plaintiffs’ allegations that7
defendants’ official duties included formulating and/or implementing policies and
practices relating to the detention, treatment, and interrogation of military
detainees held in Afghanistan and Iraq during the relevant time period, see, e.g.,
App. 1, 34-35, the district court properly held that the Westfall Act applies to and
requires dismissal of plaintiffs' international law claims. Iraq Detainee Litig., 479
F. Supp. 2d at 113-15. Indeed, the district court’s dismissal of these claims based
on Westfall Act immunity is mandated by this Court’s rulings in Rasul.
In Rasul, this Court held that the Westfall Act applies to international law
claims, asserted under the Alien Tort Statute, of torture and abuse brought by
nonresident alien detainees against military officers because the alleged wrongful
acts were “tied exclusively to the plaintiffs’ detention in a military prison and to
the interrogations conducted therein.” 512 F.3d at 658 (internal quotation marks
omitted). The alleged torts therefore were “incidental to the defendants’ legitimate
employment duties” in detaining and interrogating suspected enemy combatants.
The Westfall Act, the scope “of office or employment” issue is determined by7
reference to local respondeat superior law, see Stokes v. Cross, 327 F.3d 1210, 1214(D.C. Cir. 2003), which the district court held (and which plaintiffs do not contest)is District of Columbia law in this case. Iraq Detainee Litig., 479 F. Supp. 2d at 113.
Id. at 659. This Court held that “the underlying conduct — here, the detention8
and interrogation of suspected enemy combatants — is the type of conduct the
defendants were employed to engage in.” Id. at 658.
This Court’s rulings in Rasul I and Rasul II fully support the district court’s
Westfall Act holding here. Notably, plaintiffs in this case do not, and cannot,
argue that the detention and interrogation of military detainees were, as a general
matter, beyond the scope of defendants’ official functions. Indeed, plaintiffs’ own
amended complaint alleges that defendants’ official duties included formulating
and/or implementing policies and practices relating to the detention, treatment,
and interrogation of military detainees held in Afghanistan and Iraq during the
relevant time period. See, e.g., App. 1, 34-35. The amended complaint further
asserts that defendants’ alleged actions were committed pursuant to policies
“deliberately formulated and adopted in the United States over a long period of
time.” App. 28. Cf. Rasul I, 512 F.3d at 658 (“The plaintiffs concede that the
‘torture, threats, physical and psychological abuse inflicted’ on them, which were
As this Court subsequently explained in Harbury, this aspect of the Rasul8
decision rested in large part “on several D.C. cases holding that seriously criminal andviolent conduct can still fall within the scope of a defendant’s employment underD.C. law-including sexual harassment, a shooting, armed assault, and rape.” Harbury, 522 F.3d at 422. See also id. at 422 n.4 (“The scope-of-employment testoften is akin to asking whether the defendant merely was on duty or on the job whencommitting the alleged tort”).
the district court in Rasul, and by every court that has addressed the issue. The11 12
only reason it was not addressed by this Court in Rasul is that the plaintiffs there
(recognizing that the argument held no merit) did not even raise it on appeal.
Rasul I, 512 F.3d at 661.
The Supreme Court has held that this exception to the Westfall Act does not
apply to all federal statutes, but rather only to federal statutes that provide both a
cause of action and the substantive law which the employee is alleged to have
violated. See United States v. Smith, 499 U.S. 160, 174 (1991) (holding that there
could be no “violation” of the Gonzalez Act because it imposed no duties or
obligations, and therefore, it did not fall within the Westfall Act exception). As
every court that has addressed the issue has recognized, ATS claims clearly do not
qualify for this exception because the ATS “is a jurisdictional statute creating no
new causes of action.” Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004).
Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 38 (D.D.C. 2006).11
See, e.g., Alvarez-Machain v. United States, 331 F.3d 604, 632 (9th Cir.12
2003) (en banc), other holdings rev’d on other grounds, Sosa v. Alvarez-Machain,542 U.S. 692 (2004); Bansal v. Russ, 513 F. Supp. 2d 264, 280 (E.D. Pa. 2007);Harbury v. Hayden, 444 F.Supp.2d 19, 38-39 (D.D.C. 2006), aff’d on other grounds, 522 F.3d 413(D.C. Cir. 2008); Turkmen v. Ashcroft, 2006 WL 1662663, *49-*50(E.D.N.Y. 2006); Bancoult v. McNamara, 370 F. Supp. 2d 1, 9-10 (D.D.C. 2004),aff’d on other grounds, 445 F.3d 427 (D.C. Cir. 2006), cert. denied, 127 S. Ct. 1125(2007); Jama v. U.S.I.N.S., 343 F.Supp.2d 338, 355 (D.N.J. 2004); Schneider v.Kissinger, 310 F. Supp. 2d 251, 267 (D.D.C. 2004), aff’d on other grounds, 412 F.3d190 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1768 (2006).
Under Sosa, it is indisputable the ATS is not a federal statute that is capable of
being violated.
As in the district court, plaintiffs again on appeal “ask the Court simply to
ignore the Supreme Court’s holding in Sosa because ‘at the time Congress
considered both the TVPA and the Westfall Act, it understood that the ATS
provided a substantive cause of action for violations of the law of nations or
treaties of the United States.’” Iraq Detainee Litig., 479 F. Supp. 2d at 112. The
district court correctly observed that this argument “plainly is untenable given the
binding effect Sosa has on this Court.” Ibid.
Notably, plaintiffs’ argument is also contrary to the Ninth Circuit ruling in
Sosa. The Court of Appeals in Sosa expressly held that ATS claims are subject to
substitution under § 2679. See Alvarez-Machain v. United States, 266 F.3d 1045,
1053-54 (9th Cir. 2001). That aspect of the court of appeals’ ruling was left intact
by the Ninth Circuit sitting en banc and by the Supreme Court. The Ninth13
Circuit panel reached that result even presuming – incorrectly – that the ATS
provided a cause of action. The Ninth Circuit panel held that although the ATS
provided a cause of action, the substantive law for an ATS claim was provided by
Alvarez-Machain v. United States, 331 F.3d 604, 631-32 (9th Cir. 2003) (en13
banc) (“[W]e agree with the three-judge panel’s conclusion that the exemption doesnot apply here, and that the United States was properly substituted for the individualDEA agents.”)
Moreover, to the extent plaintiffs assert an official capacity claim against
the Secretary of Defense (App. 34-35), such a claim would also be barred by 5
U.S.C. § 701(b)(G) (exempting from review “military authority exercised in the
field in time of war or in occupied territory”).
CONCLUSION
For the foregoing reasons, the district court’s judgment should be affirmed.
Respectfully submitted,
MARK E. NAGLE /s/TROUTMAN SANDERS LLP401 9 Street, N.W., Suite 1000th
Washington, D.C. 20004(202) 274-2972Counsel for Defendant-AppelleeColonel Thomas Pappas
STEPHEN L. BRAGA /s/ROPES & GRAY
One Metro Center 700 12th Street, NW, Suite 900 Washington, DC 20005-3948
RYAN E. BULL /s/BAKER BOTTS LLP1299 Pennsylvania Ave., NWWashington, D.C. 20004(202) 639-7700Counsel for Defendant-Appellee Lt. Gen. Ricardo Sanchez (Ret.)
OCTOBER 2010
TONY WEST Assistant Attorney General
ROBERT M. LOEB /s/BARBARA L. HERWIGAttorneys, Appellate StaffCivil DivisionU.S. Department of Justice
950 Pennsylvania Ave., N.W.Room 7268Washington D.C. 20530(202) 514-4332Counsel for Defendants-Appellees Donald Rumsfeld and the United States
MICHAEL L. MARTINEZ /s/CROWELL & MORING LLP1001 Pennsylvania Avenue, N.W.Washington, D.C. 20004-2595 (202) 624-2945Counsel for Defendant-Appellee Colonel Janis Karpinski